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2023
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[2023] ZAFSHC 185
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Mankane v S (A140/2022) [2023] ZAFSHC 185 (24 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
A140/2022
In
the matter between:
TSHOHOLO
MANKANE
Appellant
and
THE
STATE
Respondent
CORAM
:
DANISO J
et
BERRY AJ
HEARD
ON
:
13 MARCH 2023
DELIVERED
ON
:
24 MAY 2023
JUDGMENT
BY:
BERRY AJ
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The date and time for hand-down is deemed to be 15h00 on 24 May 2023.
INTRODUCTION
[1]
The appellant was convicted in the Regional Division, held at
Bloemfontein
on a charge of rape of a minor on 24 July 2019.
[2]
The appellant pleaded not guilty, but the trial court convicted him
as
charged and sentenced him to life imprisonment on 25 July 2019.
[3]
He was
sentenced in terms of sec 51(1) of the Criminal Law Amendment Act
[1]
(“the Minimum Sentences Act”), as the trial court did not
find any substantial and compelling circumstances to deviate
from the
prescribed minimum sentence.
[4]
He was
declared unfit to obtain a firearm license in terms of Sec 103 of the
Firearms Control Act.
[2]
[5]
He was also
found to be unsuited to work with children in terms of sec 120 of the
Children’s Act.
[3]
An
order was issued that his name be entered into the Register of Sexual
Offenders.
[6]
The
appellant, having an automatic right of appeal in terms of sec
309(1)(a) of the Criminal Procedure Act,
[4]
filed a notice of appeal against conviction and sentence on 29 July
2019.
GROUNDS
OF APPEAL - CONVICTION
[7]
The grounds of appeal can be summarised as follows:
a)
The court erred in finding that the complainant was a credible
witness.
b)
The court erred in drawing a negative inference of the appellant’s
version and not making a credibility finding in favour of his
testimony.
c)
The court erred in finding that the state had proved its case beyond
reasonable
doubt.
[8]
The appellant pleaded not guilty and testified that he did not have
intercourse
with the complainant.
[9]
The facts upon which the trial court convicted the appellant are:
a)
The appellant accosted the complainant on street and took her hand by
force, indicating that she must walk
with him to a friend’s
house.
b)
The complainant asked her cousin to intervene. When he tried, the
appellant tripped him and kicked him, whilst
he was lying on the
ground.
c)
The complainant accompanied the appellant out of fear for her safety.
d)
The appellant instructed her to enter the bedroom and when she
refused, he threatened to assault her.
e)
Once in the bedroom, the complainant refused to undress, and the
appellant slapped her.
f)
The complainant told the appellant that she was on her monthly cycle,
but he still proceeded to rape
her, whilst his friend watched.
g)
After she got dressed the appellant took her to his home. On their
way they met up with Mr Thabo Setlai.
h)
Mr Setlai accompanied them to the appellant’s home where they
smoked dagga.
i)
Mr Setlai testified that the complainant consistently asked the
appellant to let her go whilst they were
walking to his home and that
she tried her best to loosen herself from his grip.
j)
He testified that the appellant responded that the complainant is his
wife and that they must go home
to sleep together. On arrival at his
home, the appellant again slapped the complainant when she refused to
enter his home.
k)
The appellant’s wife was at home and when she went to the
toilet, the appellant raped her again in front
of Mr Setlai.
l)
The appellant threatened that he would kill the complainant if she
said anything to his wife.
m)
The complainant asked Mr Setlai for help whilst she was being raped
by the appellant, but he did not intervene because
he was afraid of
the appellant.
n)
Mr Setlai testified that the complainant was an unwilling participant
and confirmed that the appellant penetrated
the complainant.
[10]
A Court of
Appeal will not readily interfere with the findings of a trial court,
in
R v
Dhlumayo
[5]
the court held:
“
The
trial judge has advantages which Appellate Court cannot have in
seeing and hearing the witnesses and being steeped in the atmosphere
of the trial. Not only has the court had the opportunity of observing
their demeanour, but also their appearance and whole personality.
This should never be overlooked. Consequently, the Appellate Court is
very reluctant to upset the findings of the trial judge.”
[11]
I agree with the finding of the trial court that the State proved its
case beyond reasonable
doubt, especially in view of the evidence of
Mr Setlai.
FACTORS
RELEVANT TO SENTENCE
[12]
The court considered that the complainant was fourteen years old at
the time.
[13]
The appellant raped her twice and during both instances it occurred
in front of another
male person.
[14]
The complainant was forced into submission with death threats and
actual physical violence.
[15]
The complainant suffered serious injuries because of the forceful
penetration.
[16]
The appellant is a first offender.
[17]
The appellant was in custody for four years and seven months at the
time of sentencing.
[18]
The appellant was twenty-four years old at the time of sentencing.
[19]
The appellant committed the offence when he was nineteen years old.
[20]
The appellant passed Grade 9 and was arrested whilst he was attending
Grade 10.
[21]
The appellant has a child who was six years old at the time of
sentencing.
[22]
The legal representative for the appellant submitted that the time
awaiting trial should
be considered as a compelling reason why the
court should deviate from the prescribed minimum sentence.
[23]
The trial
court was well appraised of the time-honoured triad in
S
v
Zinn
[6]
,
the purposes of sentence and the principles to be applied in arriving
at a fair and just sentence.
[24]
The personal circumstances of the appellant were considered by the
trial court as well
as the fact that the appellant spent four years
and seven months in custody, before sentencing.
[25]
The trial court considered that the appellant was nineteen years old
when he committed
the crime.
[26]
The trial court then concluded that there did not exist any
substantial circumstances or
compelling circumstances to deviate from
the minimum sentence.
ADJUDICATION
OF THE APPEAL IN RESPECT OF SENTENCING
[27]
Sentencing
is the prerogative of the trial court, and a court of appeal should
be careful not to erode this discretion
[7]
.
[28]
Interference
with a sentence is warranted where there has been an irregularity
that resulted in a failure of justice, or when the
trial court
misdirected itself to such an extent that its decision on sentencing
is vitiated, or the sentence is so disproportionate
or shocking that
no reasonable court could have imposed it.
[8]
[29]
The appellant’s legal representative submitted that the
sentence is shockingly inappropriate
and induces a sense of shock.
That the court over emphasised the offence at the costs of the
appellant’s personal circumstances
and that the court erred in
finding that no compelling and substantial circumstances exists to
deviate from the minimum sentence.
[30]
The personal circumstances of the appellant are that he is
twenty-four years old, has a
child which was six years old at the
time of sentencing, that he passed Grade 9, that he was nineteen
years old when he committed
the crime and he already spent four years
and seven months in custody at the time of sentencing.
[31]
The trial court considered the factors but did not deem any or all
factors combined as
substantial and compelling circumstances to
impose a lesser sentence than the prescribed minimum sentence.
IMPOSITION
OF LIFE IMPRISONMENT
[32]
The
seriousness of rape can never be overemphasised. Our courts have
consistently condemned rape in the strongest language as an
invasion
of the dignity, privacy, integrity, and freedom of a
person.
[9]
[33]
Rape of a
fourteen-year-old girl is a reprehensible crime that cannot be
tolerated.
[34]
S v
Nkomo
[10]
the court held that life imprisonment as a sentence for rape should
be imposed only where the case is devoid of substantial factors
compelling the conclusion that such a sentence was inappropriate and
unjust.
[35]
In
S
v De Beer
[11]
the Supreme Court of Appeal held:
“
This
court has pointed out on many occasions that injustices may occur if
the prescribed minimum sentences are imposed without a
proper
consideration of the existence of substantial and compelling
circumstances, including the question whether the prescribed
sentence
will be disproportionate to the offence, in the wide sense, in other
words, including all the circumstances of not only
the offence
itself, but also the circumstances of the parties involved.”
[36]
The court held that the four years and seven months imprisonment
before sentence, will
not make a substantial impact on the actual
time to be served by the appellant.
[37]
In
DPP
v Gcwala
[12]
the court held:
“
A
better approach, in my view, is that the period in detention
pre-sentencing is but one of the factors that should be taken into
account in determining whether the effective period of imprisonment
to be imposed is justified: whether it is proportionate to
the crime
committed. Such an approach would take into account the conditions
affecting the accused in detention and the reason
for a prolonged
period of detention. And accordingly, in determining, in respect of
the charge of robbery with aggravating circumstances,
whether
substantial and compelling circumstances warrant a lesser sentence
than that prescribed by the
Criminal Law Amendment Act 105 of 1997
,
the test is not whether on its own that period of detention
constitutes a substantial or compelling circumstance, but whether
the
effective sentence proposed is proportionate to the crime or crimes
committed: whether the sentence in all the circumstances,
including
the period spent in detention prior to conviction and sentencing, is
a just one.’
[38]
In
S
v Malgas
[13]
where Marais JA said:
“
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.”
[39]
Considering
all submissions, I am satisfied that the trial court correctly found
that there are no substantial and compelling circumstances,
warranting a deviation from the prescribed minimum sentence of life
imprisonment.
CONCLUSION
[40]
The trial
court correctly found the appellant guilty and correctly imposed the
minimum life sentence.
ORDER
[41]
The appeal in
respect of both conviction and sentence is dismissed.
_______________________
AP
BERRY AJ
I
concur.
_______________________
NS DANISO J
On
behalf of the Appellant:
Mr
PL Van Der Merwe
Instructed
by:
Bloemfontein
Justice Centre
Legal
Aid SA
BLOEMFONTEIN
On
behalf of the Respondent:
Adv
MS Matsoso
Instructed
by:
Office
of the DPP, Free State
BLOEMFONTEIN
[1]
Act
105 of 1997
[2]
Act
60 of 2000
[3]
Act
38 of 2005
[4]
Act
51 of 1977
[5]
1948(2) Supplementary Affidavit 677(a) at 705
[6]
1969
(2) SA 537 (A)
[7]
S
v Rabie 1975 (4) 855 (A) at 857 D - E
[8]
S v Bogaards 2013 (1) SACR (CC) 1 at para [41]
[9]
S
v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at 344J – 345D;
S
v
Tshabalala and Another
2020 (2) SACR 38
(CC) at paras [72] –
[75]
[10]
2007 (2) SACR 198
(SCA) at p 200 a - b
[11]
2018 (1) SACR 229
(SCA) at para [17]
[12]
Director of Public Prosecutions North Gauteng: Pretoria v Gcwala and
Others (295/13) [2014] ZASCA 44; 2014 (2) SACR 337 (SCA)
(31 March
2014)
[13]
2001
(1) SACR 469
(SCA)
para
25